DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Business (Long Stay)) visa.
The Tribunal has no jurisdiction with respect to the other applicants.
Statement made on 23 February 2017 at 10:28 am
CATCHWORDS Migration – Cancellation – (Business (Long Stay)) visa – Subclass 457 – Ceased employment exceeding 90 consecutive days – Hairdresser – ASIC deregistration reversed – Sponsor’s review application – New employer – Circumstances beyond control – Nominated by approved sponsor – Decision pending – Cost of returning to Nepal – New employer’s business needs
LEGISLATION Migration Act 1958, ss 116, 140(1), 348 Migration Regulations 1994, Schedule 2, cl 457.223(4), Condition 8107, r 2.75(2)(c), r 2.43, PIC 4013, PIC 4014
This is an application for review of a decision dated 31 October 2016 made by a delegate of the Minister for Immigration to cancel the Subclass 457 (Business (Long Stay)) visa (Subclass 457 visa) of Mrs Indira Pande, first named applicant, under s.116 of the Migration Act 1958 (the Act). Relevant extracts from the Act and the Migration Regulations 1994 (the Regulations) are set out in the Annexures to this decision.
The delegate cancelled Mrs Pande’s Subclass 457 visa under s.116((1)(b) of the Act on the basis that she did not comply with condition 8107 that was imposed on her visa because she had ceased employment with her sponsor, Ceylon Cut Pty Limited (Ceylon Cut), for more than 90 days. A copy of the delegate’s decision was provided to the Tribunal. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to Mrs Pande. The other applicants are members of her family unit and their visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of those other visas self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pande (Migration) [2017] AATA 336
Case
[2017] AATA 336
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Mrs Pande, a national of Nepal, against the cancellation of her Subclass 457 (Temporary Work (Skilled)) visa. Mrs Pande was granted the visa on 20 August 2014, with her employment as a hairdresser nominated by Ceylon Cut Pty Ltd. The Department of Immigration and Border Protection issued two Notices of Intention to Consider Cancellation (NOICC). The first NOICC, issued on 12 February 2016, cited advice that Ceylon Cut had been deregistered. Mrs Pande responded by providing evidence that the company's registration had been reinstated and that she and her colleagues continued to be employed and paid. The second NOICC, issued on 18 March 2016, referred to the cancellation of Ceylon Cut's business sponsorship approval. The Tribunal considered the grounds for cancellation under section 116 of the Migration Act 1958.
The primary legal issue before the Tribunal was whether the decision to cancel Mrs Pande's visa should be upheld. This involved determining whether the grounds for cancellation under section 116 of the Act were made out, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal noted that the Department's delegate had cancelled the visa under section 116(1)(b) for breach of a visa condition, rather than under section 116(1)(g) relating to the sponsor's circumstances. The Tribunal also had to consider the relevant circumstances and government policy in exercising its discretion, as outlined in the Department's Procedures Advice Manual.
The Tribunal reasoned that while a ground for cancellation under section 116(1)(b) may have existed, the cancellation was not mandatory. Therefore, the Tribunal was required to consider whether to exercise its discretion. The Tribunal had regard to Mrs Pande's background, including her studies in hairdressing and accounting in Australia, her family circumstances, and her efforts to secure new employment and sponsorship after the issues with Ceylon Cut arose. The Tribunal found that Mrs Pande had provided evidence of a new nomination application by MJK, which was pending, and that the circumstances surrounding the issues with Ceylon Cut were not entirely within her control.
Having considered all the evidence and circumstances, the Tribunal concluded that the factors favouring non-cancellation of Mrs Pande's visa outweighed those favouring cancellation. Consequently, the Tribunal set aside the decision to cancel Mrs Pande's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning other applicants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, these include the grounds set out in s.116(1)(b) and s.116(1)(g) of the Act. If satisfied that a ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled having regard to all the relevant circumstances, which may include matters of government policy.Background Mrs Pande is a national of Nepal. She was granted a Subclass 457 visa on 20 August 2014 for a period of 4 years on the basis of an approved nomination for the occupation of Hairdresser lodged by her employer Ceylon Cut Pty Ltd (Ceylon Cut). She worked at Ceylon Cut’s hairdressing salon in Pendle Hill. As discussed at the hearing and confirmed by documentation the Department’s file, Mrs Pande was notified of the Department’s intention to consider cancellation of her Subclass 457 visa. She twice received a Notice of Intention to Consider Cancellation (NOICC) from the Department. The Department’s first NOICC was issued on 12 February 2016 (the First NOICC) and refers to advice received by the Department that Ceylon Cut was ‘deregistered on 17 April 2015’. In her response of 23 February 2016 to the First NOICC, Mrs Pande indicated her shock at receiving in the news. She confirmed that she, as well as 5 colleagues, continue to work at Ceylon Cut. She provided evidence of her bank statements dating from October 2015 to February 2016 confirming fortnightly payments of $1,695 to her CBA bank account. Mrs Pande also included a letter from the Director of Ceylon Cut confirming that the Australian Securities and Investment Commission (ASIC) did not de-register the company but, rather, payment of its annual renewal fee (of $215) was delayed owing to the company’s change of address and the resultant failure to receive notification of monies owing to ASIC. In addition, she provided a letter from ASIC dated 17 December 2015 (that is, more than 2 months earlier) which notes that the company was reinstated to ASIC’s register on 17 November 2015 and, further, that ‘the registration of the company continues as if deregistration had not occurred’. Mrs Pande also provided the Department with a copy of the Tribunal’s receipt for payment of a review application lodged by Ceylon Cut. In her covering letter, Mrs Pande indicates that she understands that the application before the Tribunal relates to ‘the deregistration decision’. A second NOICC was issued by the Department on 18 March 2016 (the Second NOICC). It states that Ceylon Cut’s business nomination (sic) approval was cancelled on 17 December 2015. It is clear to the Tribunal that the Department’s reference to the ‘business nomination’ should be reference to Ceylon Cut’s sponsorship approval as the nomination of the position of Hairdresser for Mrs Pande ceased on 20 August 2014, that is, the day Mrs Pande’s Subclass was granted consistent with the provisions of r.2.75(2)(c) of the Regulations. In the circumstances, it would have been appropriate for the Department to consider cancellation of Mrs Pande’s Subclass 457 visa under s.116(1)(g) of the Act which provides for a prescribed ground for cancelling a visa as set out in r.2.43 of the Regulations. Relevant to the present case, the ground in r.2.43(1)(l) of the Regulations may have been relevant, that is, where a sponsor is sanctioned or the sponsorship approval is cancelled. However, as evident in the delegate’s letter (a copy of which was provided to the Tribunal) there is no reference to s.116(1)(g) of the Act and/or r.2.43(1)(l) of the Regulations. Rather, the delegate formed the opinion that Mrs Pande had breached a condition attached to her Subclass 457 visa and proceeded to cancel the visa pursuant to s.116(1)(b) of the Act.
Decision
Reasons for decision
Having considered all of the circumstances in this case and the evidence before it, the Tribunal is persuaded that the evidence in favour of not cancelling Mrs Pande’s Subclass 457 visa outweighs that in favour of cancelling her visa. For these reasons, the Tribunal has formed the view that this is an appropriate case to exercise its discretion and not cancel Mrs Pande’s Subclass 457 visa. DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 457 (Temporary Work (Skilled)) visa. The Tribunal has no jurisdiction with respect to the other applicants.Katie MalyonMemberAnnexure A – Extracts from the Migration Act 1958s.116 Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or (aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. (1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity. (1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that: (a) incorrect information was given, by or on behalf of the person who holds the current visa, to: (i) an officer; or (ii) an authorised system; or (iii) the Minister; or (iv) any other person, or a tribunal, performing a function or purpose under this Act; or (v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and (b) the incorrect information was taken into account in, or in connection with, making: (i) a decision that enabled the person to make a valid application for a visa; or (ii) a decision to grant a visa to the person; and (c) the giving of the incorrect information is not covered by Subdivision C. This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held. (1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose. (2) The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.(3) If the Minister may cancel a visa under subsection (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. s.140 Cancellation of visa results in other cancellation (1) If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled. (2) If: (a) a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa; the Minister may, without notice to the other person, cancel the other person's visa. (3) If: (a) a person's visa (the cancelled visa ) is cancelled under any provision of this Act; and (b) the person is a parent of another person; and (c) the other person holds a particular visa (the other visa ), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa; the other visa is also cancelled. (4) If: (a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and (b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N; the cancellation under subsection (1), (2) or (3) is revoked. oOOoAnnexure B – Extracts from the Migration Regulations 1994r. 2.43 Grounds for cancellation of visa (Act, s 116) (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are: …(l) in the case of the holder of a Subclass 457 (Temporary Work (Skilled)) visa who is a primary sponsored person in relation to a person who is, or was, a standard business sponsor or party to a labour agreement (the sponsor )--that: (i) the sponsor has not complied, or is not complying, with the undertaking given by the business sponsor in accordance with approved form 1067, 1196 or 1196 (Internet); or (ii) the sponsor has given false or misleading information to Immigration or the Tribunal; or (iii) the sponsor has failed to satisfy a sponsorship obligation; or (iv) the sponsor has been cancelled or barred under section 140M of the Act; or (v) the labour agreement has been terminated, has been suspended or has ceased; …Schedule 8 - Visa Conditions 8107 (1) If the visa is not a visa mentioned in subclause (3) or (4), and was granted to enable the holder to be employed in Australia, the holder must not: (a) cease to be employed by the employer in relation to which the visa was granted; or (b) work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or (c) engage in work for another person or on the holder's own account while undertaking the employment in relation to which the visa was granted. (2) If the visa is not a visa mentioned in subclause (3) or (4), and subclause (1) does not apply, the holder must not: (a) cease to undertake the activity in relation to which the visa was granted; or (b) engage in an activity inconsistent with the activity in relation to which the visa was granted; or (c) engage in work for another person or on the holder's own account inconsistent with the activity in relation to which the visa was granted. (3) If the visa is , or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(2) or (4): (a) the holder: (i) must work only in the occupation listed in the most recently approved nomination for the holder; and (ii) unless the circumstances in subclause (3A) apply: (A) must work only for the party to a labour agreement or former party to a labour agreement who nominated the holder in the most recently approved nomination; or (B) if the sponsor is, or was, a standard business sponsor who was lawfully operating a business in Australia at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor or an associated entity of the sponsor; or (C) if the sponsor is or was a standard business sponsor who was not lawfully operating a business in Australia, and was lawfully operating a business outside Australia, at the time of the sponsor's approval as a standard business sponsor, or at the time of the last approval of a variation to the sponsor's term of approval as a standard business sponsor must work only in a position in the business of the sponsor; and (aa) the holder must commence that work within 90 days after the holder's arrival in Australia; and (b) if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days; and (c) if the holder is required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder, in the location where the holder's position is situated--the holder must: (i) hold the licence, registration or membership; and (ii) comply with each condition or requirement to which the licence, registration or membership is subject. (3A) For subparagraph (3)(a)(ii), the circumstances are that: (a) if the nomination was made before 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(d)(ii) or (iii); or (aa) if the nomination is made on or after 1 July 2010 the holder's occupation is specified in an instrument in writing for subparagraph 2.72(10)(e)(ii) or (iii); or (b) the holder is continuing to work for the sponsor, or the associated entity of the sponsor, for the purpose of fulfilling a requirement under a law relating to industrial relations and relating to the giving of notice. (3B) If the visa is, or the last substantive visa held by the applicant was, a Subclass 457 (Temporary Work (Skilled)) visa that was granted on the basis that the holder met the requirements of subclause 457.223(8): (a) the holder must work only in the occupation or position in relation to which the visa was granted; and (b) if the holder ceases employment the period during which the holder ceases employment must not exceed 90 consecutive days. (4) If the visa is: (a) a Subclass 401 (Temporary Work (Long Stay Activity)) visa; or (b) a Subclass 402 (Training and Research) visa; or (ba) a Subclass 420 (Temporary Work (Entertainment)) visa; the holder must not: (c) cease to engage in the most recently nominated occupation, program or activity in relation to which the holder is identified; or (d) engage in work or an activity that is inconsistent with the most recently nominated occupation, program or activity in relation to which the holder is identified; or (e) engage in work or an activity for an employer (within the meaning of subregulation 2.72A (8)) other than the employer identified in accordance with paragraph 2.72A(7)(a) in the most recent nomination in which the holder is identified. …8501 The holder must maintain adequate arrangements for health insurance while the holder is in Australia. oOOo
Ratio Decidendi
Legal Principle Established
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under s.116(3) of the Act, the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. In exercising its power to cancel a visa, the Tribunal should have regard to policy as a relevant consideration. However, policy is not binding on the Tribunal.[1] The overarching principle is that the Tribunal must make an independent assessment of the material before it with a view to reaching the correct or (in the case of the exercise of a discretionary power, as in this case) the preferable decision.[2]The purpose of the visa holder’s travel to and stay in Australia[1] Re Drake v MIEA (No 2) (1979) 2 ALD 634; Qiao v MIAC [2008] FMCA 380 [2] See Hneidi v MIAC [2010] FCAFC 20 (Spender, Emmett and Jaocobson JJ) at [34] Mrs Pande told the Tribunal she came to Australia in November 2008 to complete her studies in hairdressing. Following studies in hairdressing and beauty therapy in Nepal she worked there for 3 years before coming to Australia. Since arriving in Australia she has completed a Diploma in Hairdressing at Venous Hairdressing College in Sydney and, with a view to opening her own salon one day, she has then completed a Bachelor of Professional Accounting at Holmes Institute in Sydney. Mrs Pande told the Tribunal that, not long after starting her Bachelor of Professional Accounting, her 2 children came to Australia to join her and her husband. After completing her Bachelor degree, Mrs Pande said was unsure as to her next steps but decided to take up the offer of employment with Ceylon Cut at Pendle Hill. However, things took a turn after she received the First NOICC. She said was stunned because she and 5 colleagues were all still working there, and being paid. Furthermore, neither her representative nor the owners of Ceylon Cut told her, or anyone else, anything about the operation of the business. It was only after she received the Second NOICC that she called the delegate and he told she had 4 weeks to find a new sponsor. Mrs Pande added she was unsuccessful until she stumbled upon the advertisement by Daisy & Hair Beauty. MJK’s first nomination was unsuccessful due, she said, to an oversight by the representative in failing to provide evidence of labour market testing. Mrs Pande said she understands a second fully documented decision-ready nomination application by MJK identifying her as the nominee is pending. Evidence of lodgement of a new nomination was provided to the Tribunal by Mrs Pande’s representative.